Indiana Court Rules Physicians Must Fulfill Collaborative Practice Agreement Obligations with Reasonable Care to Avoid Medical Malpractice Liability

On December 31, 2015, the Court of Appeals of Indiana decided Collip v. Ratts, and concluded that under a Collaborative Practice Agreement (“CPA”), a physician owes a duty to the patients of his collaborating nurse practitioner.

In Collip, Dr. John Collip and nurse practitioner, Dena Barger, entered into a CPA under which Collip provided oversight to Barger. The CPA required Collip to oversee Barger’s authority to prescribe drugs by reviewing at least 5% of Barger’s charts on a weekly basis, a requirement with which Collip failed to comply. Barger treated a patient named Robert Ratts by prescribing him multiple medications. However, Collip never treated or saw Robert and never reviewed Robert’s medical records.  On March 30, 2009, Robert died from “acute bronchopneumonia complicating mixed drug interaction.” Robert’s mother, Vickie Ratts, filed a medical malpractice complaint against Collip, Barger, and Barger’s clinic.  Ratts argued that Collip owed a duty to Robert as a matter of law. By contrast, Collip argued that he did not owe a duty to Robert as a matter of law. The trial court ruled in favor of Ratts, granting her motion for summary judgment, which Collip appealed.

The Court of Appeals of Indiana reviewed the trial court’s decision de novo, and ultimately affirmed, holding that physicians have a duty to the patients of nurse practitioners to fulfill their obligations under CPAs with reasonable care. The Court acknowledged that at common law, a physician does not owe a duty to a patient unless a physician-patient relationship exists. But, the Court found a duty to exist under the test set forth by the Indiana Supreme Court in Webb v. Jarvis. According to Webb, to determine whether a physician has a legal duty to a third party to whom he had not provided any medical treatment, three factors should be balanced together: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person who was injured; and (3) public policy concerns.

The relationship between Collip, Barger, and Robert weighed in favor of the existence of a legal duty. While the only link between Collip and Robert was the CPA, Indiana law does not preclude liability in tort for personal injury simply due to lack of privity. If one has actual knowledge that a third person might reasonably be affected by, and benefit from, provision of their services, a duty is owed. Collip had actual knowledge that Robert might reasonably be affected by, and benefit from, the performance of his services under the CPA. This weighs in favor of the existence of a legal duty.

The reasonable foreseeability of harm to Robert also weighed in favor of the existence of a legal duty. For this factor to be satisfied, the person actually harmed must have been a reasonably foreseeable victim, and the type of harm actually inflicted must have been reasonably foreseeable. Robert was a reasonably foreseeable victim because Collip failed to adequately perform his oversight duties.  Robert’s death was also foreseeable because Collip negligently performed his obligations under the CPA. This weighs in favor of the existence of a legal duty.

Public policy concerns weighed in favor of the existence of a duty, as well. One of the purposes of the detailed statutory scheme put forth by the legislature was to ensure the safety of the patients of nurse practitioners. This can only be accomplished through meaningful oversight of a physician. However, without a legal duty to provide meaningful oversight, there is no incentive for physicians to do so, which will likely result in a lack of meaningful oversight in CPAs. This will jeopardize the safety of the patients of nurse practitioners, so public policy necessarily favors the existence of a legal duty. Upon balancing of the three Webb factors, the scales undoubtedly tip in favor of physicians owing a legal duty to the patients of nurse practitioners.

The Court also utilizes the Restatement (Second) of Torts in coming to its conclusion. Id. Section 324A states, “[o]ne who undertakes…to render services to another which he should recognize as necessary for the protection of a third person…is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm…”

The Court found this section to apply to any undertaking, including the undertaking made by Collip. Collip undertook a duty to direct and supervise Barger in her prescribing practices, and his services were necessary for the protection of Barger’s patients. Therefore, because Collip did not exercise reasonable care in performing his duties under the CPA with Barger, he increased the risk of physical harm to Barger’s patients.

The Court of Appeals of Indiana held that physicians owe a duty to the patients of collaborating nurse practitioners. As a result, Collip owed a duty to Robert Ratts. According to the Court, the relationship between Collip and Robert, the reasonable foreseeability of harm to Robert, and public policy all weigh in favor of the existence of a duty, and the Restatement (Second) of Torts also supports the existence of this duty. Therefore, to avoid medical malpractice liability, Indiana physicians must be meticulous and mindful that they are fulfilling their obligations under their Collaborative Practice Agreements with reasonable care.

 

Lacey Rogers is currently a 2L at DePaul University College of Law. She hold a B.A. from the University of Toledo, where she majored in philosophy and minored in psychology. Lacey plans to graduate from DePaul in 2017 with her J.D. and Health Law Certificate.